STATE OF NEW JERSEY v. CARLOS RAWLS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05554-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS RAWLS,

Defendant-Appellant.

__________________________________

April 7, 2014

Submitted October 17, 2013 Decided

Before Judges Waugh and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-06-0614.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 

Following the court's denial of his suppression motion, defendant Carlos Rawls pled guilty to a drug offense and a weapons offense, and the court sentenced him to a three-year custodial term. In this appeal, defendant argues that there are three reasons the trial court erred when it denied his suppression motion: first, the officers who arrested him did not have probable cause to believe that Ashanti Thomas was home when, armed with an arrest warrant, they entered her apartment, where he was staying. Second, the officers did not act in an objectively reasonable manner when they entered the apartment's bedroom. Third, the officers did not testify credibly at the suppression hearing. Having considered defendant's arguments, the record, and controlling law, we conclude that the judge's findings of fact, including his credibility determinations, are supported by ample credible evidence, and that his legal conclusions are sound. Accordingly, we affirm.

I.

A Mercer County grand jury charged defendant in a six-count indictment with third-degree possession of a controlled dangerous substance (CDS), oxycodone, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession with intent to deliver a CDS, oxycodone, N.J.S.A. 2C:35-5(a)(1) and -5(b)(7) (count two); third-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count three); third-degree possession of a CDS, cocaine, N.J.S.A. 2C:35-10(a)(1) (count four); second-degree possession of a firearm while committing a CDS offense, N.J.S.A. 2C:39-4.1(a) (count five); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a) (count six). The grand jury also charged Ashanti Thomas with the offenses set forth in counts one through three, and five.

Following the grand jury's indictment of defendant and Thomas, they moved to suppress the drugs and the gun police officers had seized from Thomas' apartment. A judge denied their motions. Defendant subsequently pled guilty to counts four and six. The judge sentenced defendant to a three-year custodial term on count four and to a concurrent eighteen-month custodial term on count six, and dismissed the remaining counts.

At the suppression hearing, the State developed its proofs through the testimony of Investigator William Perez and Detective Jeremy Stewart, employees of the Mercer County Sheriff. According to Investigator Perez, on the morning he arrested defendant, he was working with the United States Marshals Fugitive Task Force. His sergeant assigned him to execute an arrest warrant for Ashanti Thomas. The warrant had been issued three weeks earlier when Thomas failed to appear in Superior Court for a hearing related to a charge of receiving stolen property. After verifying Thomas' present address, Investigator Perez drove to the apartment complex where Thomas lived. Two other officers, Detective Stewart and Investigator Dean Wylie, accompanied him.

When the officers arrived at the apartment complex, Investigator Perez went to the management office where he spoke with Judy Finkel and showed her a photograph of Thomas. Detective Stewart and Investigator Wylie remained outside. Finkel confirmed that Thomas lived in apartment I-18. In response to the Investigator's request, Finkel called a groundskeeper, who pulled up to the office in a golf cart.

The groundskeeper, who Investigator Perez could neither identify by name nor describe, identified the photograph of Thomas and said that when he drove to the office he saw Thomas standing outside of her apartment, I-18, talking on a cellular phone. Apartment I-18 was approximately 100 yards from where they were speaking. The groundskeeper also told Investigator Perez that he "see[s] a lot of people approaching that apartment." Investigator Perez inferred from this statement that the people in the apartment "may be engaged in some type of narcotics transaction with people."

The officers proceeded to the building in which apartment I-18 was located. As they faced the building there were four entrance doors, two to the left of center, two to the right of center, one on each side for a first-floor apartment, and one on each side for a second-floor apartment. The building had no rear entrances or exits.

The entrance to Thomas' second-floor apartment, I-18, was on the left half of the building. Wearing black exterior ballistics vests with the word "Sheriff" in gold letters on the front and rear panels, Investigator Perez and Detective Stewart approached the door. Investigator Wylie remained outside, in front of the building's right side, to look for anyone peering out the building's windows. According to Investigator Perez, the door was unlocked and slightly ajar. He knocked on the door and yelled into the apartment, "sheriff's office," but received no answer. When he knocked a second time, he heard either voices or some type of movement coming from the upstairs apartment. He and Detective Stewart then walked up the stairs, their weapons drawn.

When the officers reached the top landing of the stairs, which was "actually the living room floor," they entered an open area. Looking around the living room to their right, the dining room in front of them, and the kitchen to their left, they saw no one. They then "ma[de] their way" to their right, toward the area of the apartment's two bedrooms where they had heard the noise. According to Investigator Perez, during their continuing search of the apartment, and as he walked toward the bedroom, he "continued to identify [himself] as 'Sheriff's' . . ." The remainder of Investigator Perez's answer was apparently cut off when defense counsel began his next question before the Investigator completed his answer.

The officers entered the bedroom through its unlocked, open door. When Investigator Perez stepped into the bedroom, he saw Thomas and defendant in bed, Thomas on the right side and defendant on the left.

Investigator Perez repeatedly commanded defendant and Thomas to show their hands, which were under the covers. They initially failed to comply. Thomas then began to get out of bed, Inspector Perez holstered his weapon, and Thomas lunged toward the floor where Inspector Perez observed what he thought was a handgun. He yelled "gun," pushed Thomas back on the bed, and handcuffed her.

At the same time, Stewart approached defendant, yelled "gun," and then placed defendant in handcuffs. Detective Stewart had seen a handgun in a boot beneath the left side of the bed.

The officers retrieved the weapons. The weapon that Inspector Perez had seen turned out to be a pellet gun. Detective Stewart seized a defaced handgun from the boot beneath the bed.

Investigator Perez also seized a box of .38 caliber cartridges from a nightstand next to defendant, and prescription pills lying on a bureau in the bedroom. The cartridge box and fifty-one prescription pills were in plain view. From Investigator Perez's previous experience, which included his completion of narcotics courses and participation in more than 200 narcotics investigations, he recognized the pills as oxycontin. The officer also saw on the bureau, with the pills, labeled and unlabeled brownish-yellow prescription bottles with white caps.

Investigator Perez also seized from the bureau top an identification card issued to defendant, which lay among several municipal court notices issued to defendant. Detective Stewart seized a small plastic baggie from a pocket of defendant's pants. Investigator Perez believed the substance in the baggie was crack cocaine. After seizing the drugs and guns, the officers arrested defendant and Thomas.

During cross-examination, defendant attempted to impeach Investigator Perez with his report and grand jury testimony. In his report and grand jury testimony, Investigator Perez stated that the pills he confiscated were found on a nightstand, not on a bureau, as he testified at the hearing. Investigator Perez explained that he was "not a furniture guy, so, to me, a nightstand or a bureau . . . [is] all part of bedroom furniture."

Detective Stewart testified and, for the most part, corroborated Investigator Perez's testimony. Nevertheless, Detective Stewart's testimony was inconsistent with that of Investigator Perez on several points. Detective Stewart waited in his car in the parking lot while Investigator Perez talked to the apartment complex's manager. According to Detective Stewart, Investigator Perez interviewed a couple of people in the manager's office, who confirmed that the apartment they were going to was in fact where Thomas resided. Investigator Perez also learned from "speaking with management" that Thomas had recently been seen outside the apartment, I-18, and that "a lot of traffic [was] coming and going from the apartment, a lot of foot traffic." Detective Stewart did not recall seeing Investigator Perez speak to a groundskeeper.

According to Detective Stewart, Investigator Wiley was stationed in the rear of the building to prevent escapes from the rear. Additionally, Detective Stewart testified that the apartment's exterior door was closed but unlocked when they initially knocked and announced, and received no response. Investigator Perez opened the door. Detective Stewart did not recall Investigator Perez knocking a second time.

Defendant presented the testimony of the apartment complex's manager, Judy Finkel. She had little recollection of the events that had occurred on September 28, 2010, more than a year before the suppression hearing. She managed four different properties and could not recall where she was working on September 28, 2010. She did recall, however, speaking to police officers in September 2010 at the complex where Thomas lived. She could not recall the time of day that she spoke to the officers.

Finkel recalled that two officers came to the complex, but she could not describe them. She testified that she may have spoken to the officers, and that there may have been questions back and forth, because she tried to help, but she really could not recall. She recalled that the officers wanted to verify where a resident lived and if there was a lease. She did not think that she got the paperwork for the officers, but thought that the leasing agent provided the paperwork. When asked if she recognized Thomas, who was in the courtroom, Finkel replied that she did not recognize her.

Finkel further testified that there were staff, but not groundskeepers, on the property. The staff did "anything that needs to be done as far as maintenance." However, the complex had a contract with a landscaper. The complex did not have a golf cart on site. When asked if the law enforcement officers who visited her requested to speak to a staff member, Finkel replied that she did not recall. Nor could she recall if she or any staff member showed apartment I-18 to the officers.

Based on the testimony of the two officers and Finkel, the court denied defendant's suppression motion. The court acknowledged the testimonial inconsistencies, but determined that the officers had testified credibly.

The court explained that despite the discrepancy about whom Investigator Perez spoke with in the management office, he confirmed that Thomas leased the apartment. The court also believed that the Investigator's use of the term "groundskeeper," in contrast to Finkel's testimony that the complex only employed maintenance men and independent landscapers, was not a "willful deception" but more likely an "innocent misrecollection" of the individual's role or title. Similarly, the court noted that Perez could have been "just wrong in his recollection of the vehicle the person he encountered was riding."

As to whether the door to Thomas' apartment was ajar, as Investigator Perez testified, or closed, as Detective Stewart stated, the court believed the discrepancy was explainable because Detective Stewart was standing behind Investigator Perez, and did not have as good a view of the door. And the court found inconsequential the discrepancy between Investigator Perez's testimony at the hearing on one hand, and his report and grand jury testimony on the other, about whether the pills were on the bureau or on the nightstand.

Because the officers' testimony did not precisely dovetail, the court gave it greater credence. The court found that the officers testified "in a straightforward manner," and that they "did not shy away from answering any questions on cross-examination." The court also found the officers "forthright in advising counsel" when they did not recall an answer.

Based on its credibility determinations, the court found that the officers' pre-arrest investigation provided probable cause to believe that Thomas was present at her apartment when they entered it. The court denied defendant's motion to suppress the gun and the drugs. Defendant pled guilty, the court sentenced him, and he appealed.

II.

Defendant presents the following points for our consideration:

POINT I

the trial judge erred in denying [defendant's] motion to suppress because the police officers lacked probable cause to believe that Ashanti Thomas was home prior to entering her apartment and failed to act in an objectively reasonable manner during the search.

POINT II

The trial judge erred in finding the arresting officers' suppression hearing testimony credible.

We begin with our standard of review. When considering a trial court's decision to grant or deny a motion to suppress evidence, "an appellate court 'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Appellate courts "should give deference to those findings of the trial judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). For those reasons, an appellate court will disturb a trial court's findings of fact only when "they are so clearly mistaken that the interests of justice demand intervention and correction." Elders, supra, 192 N.J. at 244 (citation and internal quotation marks omitted). Appellate review of a trial court's legal conclusions, however, is plenary. Handy, supra, 206 N.J. at 45.

In the case before us, defendant first contends that Investigator Perez and Detective Stewart did not have probable cause to believe that Thomas was present when they entered her apartment. We disagree.

When police possess a valid arrest warrant, they have a "'limited authority to enter a dwelling' in which [a defendant] live[s] when there [are] reasonable grounds to believe [he or she is] there." State v. Jones, 143 N.J. 4, 15 (1995) (quoting Payton v. New York, 445 U.S. 573, 602-03, 100 S. Ct. 1371, 1388-89, 63 L. Ed. 2d 639, 660-61 (1980)); see also State v. Miller, 342 N.J. Super. 474, 497 (App. Div. 2001) ("[W]e hold that the standard for determining the validity of police action such as occurred here is whether there was an objectively reasonable basis both for believing the residence to have been the home of the person named in the arrest warrant and that he was present in the home at the time the warrant was executed."). By doing so, the police violate neither the Fourth Amendment nor the New Jersey Constitution. Jones, supra, 143 N.J. at 15. Of course, when executing a warrant, the police must act "in an objectively reasonable manner." Id. at 20.

Here, when the officers executed the arrest warrant for Thomas, they had objectively reasonable grounds to believe both that Thomas resided in the apartment and that she was there. Investigator Perez had verified with the manager of the apartment complex that Thomas lived in apartment I-18. When he left the management office, he spoke with a person whom he identified as a groundskeeper, who said he had just seen Thomas standing outside of her apartment talking on the telephone. Investigator Perez and Detective Stewart went to apartment I-18 and found the door unlocked and, according to Investigator Perez, ajar. The officers heard either noise or voices coming from the apartment. The totality of those circumstances provided the officers with objectively reasonable grounds to believe that Thomas was in the apartment.

Defendant reasons "the report that Thomas was seen outside her apartment ten minutes earlier does not make it any more likely that she was inside the apartment when the police arrived." He argues that "had the groundskeeper provided information indicating that Thomas was walking back in the direction of the apartment or that she was wearing a bathrobe and slippers, it would have been more likely that she was present in the apartment when the police arrived." Defendant also suggests numerous "possible scenarios" as to why the open door could have been open even if Thomas were not in the apartment. Defendant's arguments demonstrate a misunderstanding of what constitutes an objectively reasonable belief.

A law enforcement officer does not have to rule out every hypothetical scenario as to why a set of circumstances might mean a resident is not in her home in order to hold a reasonable belief to the contrary. In a not dissimilar context, our Supreme Court has explained that "'[i]n dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (alteration in original) (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 544 (1983)). Here, defendant would have us evaluate the concept of objective reasonableness by engaging in the type of reasoning resorted to by legal technicians, rather than in the factual and practical considerations of everyday life on which reasonable and prudent men act. We decline to do so. In the case before us, the totality of circumstances provided the officers with an objectively reasonable basis for believing not only that Thomas resided in apartment I-18, but also that she was present when they entered the apartment to execute the warrant.

Defendant next asserts that the officers did not act in an objectively reasonable manner when they executed the arrest warrant. Defendant does not challenge their initial entry in apartment I-18, when Investigator Perez knocked on Thomas' door, which was ajar, and announced himself. Rather, defendant argues that "it would have been objectively reasonable for the officers to achieve their purpose by the less invasive means of announcing their presence at the top of the stairs to give Thomas the opportunity to get dressed and meet them in the living room." Defendant asserts that because the officers failed to announce themselves a second time, after entering the apartment, their execution of the arrest warrant was unreasonable and the trial court should therefore have suppressed the drugs and gun.

Defendant's argument overlooks Investigator Perez's testimony on cross-examination that he continued to announce himself as he walked through the apartment. More significantly, defendant has cited no authority to support his argument. Our Supreme Court has held that "when law enforcement seeking to serve a warrant has announced its presence and is confronted by silence, a reasonable period of time must elapse between the announcement made and any subsequent forcible entry into the dwelling." State v. Robinson, 200 N.J. 1, 4 (2009). Here, the officers knocked once, announced, then knocked again before entering the apartment through the unlocked door that was partially ajar. As we have pointed out previously, defendant has not challenged their initial entry into the apartment as being unreasonable.

Moreover, we cannot lose sight "of the significance that attaches to the issuance of a warrant and the fact that 'every arrest, regardless of the nature of the offense [may] present a risk of danger to an officer.'" Jones, supra, 143 N.J. at 17 (alteration in original) (quoting State v. Bruzzese, 94 N.J. 210, 233 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). This is particularly so here, where the officers had received information that suggested someone might be dealing drugs from the apartment. But in any event, Investigator Perez testified that he announced himself as he approached the bedroom. Considering that testimony, we conclude that defendant's argument, not the court's decision, is flawed.

Lastly, defendant argues that the motion judge erred by finding the officers' testimony credible. This argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).